F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

SEP 3 2003

PATRICK FISHER
Clerk

CECIL J. TAGGART, JR.,

Plaintiff - Appellant,
v.
STATE OF OKLAHOMA;
OKLAHOMA DEPARTMENT OF
CORRECTIONS,

No. 03-6064
(D.C. No. 01-CV-1723-T)
(W.D. Okla.)

Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **
Plaintiff-Appellant Cecil J. Taggart, Jr., a former state inmate appearing
pro se, appeals from the district courts dismissal of his 42 U.S.C. 1983 action
filed against the State of Oklahoma, the Oklahoma Department of Corrections
(DOC), and DOC Medical Services. The district court construed the complaint
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
**

also to include as a defendant Reginald Hines, Warden of the Lexington

Assessment and Reception Center. Our jurisdiction arises under 28 U.S.C. 1291
and we affirm.
In November 2001, at the time of the complaint, Mr. Taggart was an inmate
in DOCs custody. His complaint alleged that Defendants were deliberately
indifferent to his medical needs as a recovering cancer survivor and violated his
due process, Eighth Amendment, and state law rights by exposing him to
unreasonably high levels of environmental tobacco smoke (ETS) at three
Oklahoma prisons. Specifically, he alleged that prison officials sell and distribute
tobacco products at prisons to gain revenue, fail to enforce rules and restrictions
on smoking, fail to prevent exposure to ETS due to improper ventilation, and
house non-smoking prisoners with smoking prisoners. He sought both injunctive
relief and damages.
In March 2002, Defendants filed a combined motion to dismiss and motion
for summary judgment. Mr. Taggart was discharged from DOC custody in August
2002. In November 2002, upon referral from the district court, the magistrate
judge concluded that each of Mr. Taggarts claims were either moot in light of his
discharge, barred by the Eleventh Amendment, or unexhausted. The magistrate
judge therefore recommended that Defendants motion be granted. The district
court adopted the magistrate judges Report and Recommendation in its entirety
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over Mr. Taggarts objections and granted Defendants motion to dismiss.

We review de novo the district courts grant of a Fed. R. Civ. P. 12(b)(6)
motion to dismiss, applying the same standard as the district court. Sutton v.
Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). We
accept as true all well-pleaded factual allegations and those allegations are
viewed in the light most favorable to the nonmoving party. Id. Such a motion
should not be granted unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief. Id.
(quotation omitted).
On appeal, Mr. Taggart reasserts that his claims are not moot, that the
Defendants are not entitled to Eleventh Amendment immunity, and that he
exhausted his claims. Aplt. Br. at 2-3, 16. After conducting a careful review of
the issues and examining the parties submissions, including Mr. Taggarts brief
and reply, the record on appeal, and the relevant law, we are convinced that the
district courts disposition was correct. For substantially the reasons cited by the
magistrate judge and relied on by the district court, we conclude that Mr.
Taggarts complaint was properly dismissed.
First, we agree with the district court that, on the basis of Green v.
Branson, 108 F.3d 1296, 1300 (10th Cir. 1997), Mr. Taggarts claims for
injunctive relief are moot given his release from confinement. After a de novo
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review, Higganbotham v. Okla., 328 F.3d 638, 644 (10th Cir. 2003), we also
agree that the Eleventh Amendment bars Mr. Taggarts claims against the State of
Oklahoma, the DOC, DOC Medical Services, and Warden Hines (acting in his
official capacity). See Eastwood v. Dept. of Corrs., 846 F.2d 627, 632 (10th Cir.
1988). Even if any of Mr. Taggarts claims were read to be asserted against
individuals acting in their individual capacities, we agree with the magistrate
judge that Mr. Taggart would not have properly exhausted those claims as
required by 42 U.S.C. 1997e(a). Given this combination of problems with each
of his claims, we conclude that the district courts resolution was correct. Finally,
because the district court correctly dismissed Mr. Taggarts federal law claims,
we perceive no abuse of discretion in its decision to refuse to exercise
supplemental jurisdiction over his state law claims. See 28 U.S.C. 1367(c)(3);
Gold v. Local 7 United Food & Commer. Workers Union, 159 F.3d 1307, 1310
(10th Cir. 1998).
Accordingly, we AFFIRM the district courts dismissal of Mr. Taggarts
complaint. Furthermore, we GRANT Mr. Taggarts motion to proceed in forma
pauperis and remind him that he is obligated to make partial payments of the
filing fee until the entire fee has been paid. We DENY his request for
appointment of counsel and GRANT his request to have his supplemental
authority considered (it does not change the outcome). Finally, counsel for
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Defendants is directed to observe the requirements of 10th Cir. R. 28.2 for future
filings.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge

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